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09/14/87 Rose Canzoneri, v. the Village of Franklin

September 14, 1987

ROSE CANZONERI, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF FRANKLIN PARK, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

513 N.E.2d 1103, 161 Ill. App. 3d 33, 112 Ill. Dec. 494

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding. 1987.IL.1338

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiff, Rose Canzoneri, appeals from an order granting summary judgment in favor of defendant, the village of Franklin Park, in a negligence action which sought damages for personal injuries sustained by plaintiff when she fell on an allegedly broken section of public sidewalk. On appeal, plaintiff contends that the trial court erred: (1) in striking her counteraffidavit on the ground that it contradicted her prior deposition testimony; (2) in striking the counteraffidavit of her counsel for failure to comply with Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)); and (3) in granting defendant's motion for summary judgment. For the following reasons, we affirm in part, reverse in part, and remand for a trial on the merits.

The pleadings indicate that on October 5, 1982, plaintiff, approximately 76 years old at the time, was walking on the public sidewalk which ran parallel to Franklin Avenue in Franklin Park when she stepped on a piece of broken sidewalk and fell to the ground, suffering a fractured hip as the result. A passing truck driver saw plaintiff lying on the ground and summoned paramedics, who administered aid at the scene and then transported plaintiff to a nearby hospital.

On March 4, 1983, plaintiff filed a cause of action against defendant, alleging negligence and requesting damages in excess of $15,000. In its answer, defendant alleged, inter alia, that it owned, managed, maintained and controlled only a certain portion of sidewalks which ran parallel to Franklin Avenue, and denied liability. Defendant did not specifically deny that it owned, managed, maintained and controlled that section of sidewalk where plaintiff had fallen. Thereafter, in June 1985 defendant moved for summary judgment, *fn1 purportedly alleging that plaintiff's discovery deposition taken on March 25, 1985, failed to support the issues raised in the pleadings. Plaintiff filed an objection to the motion and attached her own counteraffidavit as well as the counteraffidavit of her counsel. In her counteraffidavit, plaintiff stated that she fell when a piece of broken sidewalk moved under her feet. She stated that she had neither stepped into a hole nor slipped or tripped on the sidewalk. The counteraffidavit of plaintiff's counsel referred to two exhibits attached thereto. The first was a report from the Franklin Park fire department detailing the aid given by the paramedic to plaintiff on the day of the injury. The second exhibit was a page from an Illinois Bell telephone book which indicated the address of a restaurant to which plaintiff had referred in her deposition when describing the location of her fall.

Defendant moved to strike the counteraffidavits on the grounds that: (1) plaintiff's counteraffidavit contradicted admissions made during her discovery deposition; and (2) the counteraffidavit of plaintiff's counsel failed to comply with Supreme Court Rule 191(a). The trial court granted defendant's motion to strike the counteraffidavits as well as its motion for summary judgment. Plaintiff's appeal followed.

Plaintiff first contends that the trial court erred in striking her counteraffidavit on the ground that it contradicted her prior deposition testimony. Plaintiff argues that in both her deposition and her counteraffidavit, she testified to the existence of a material defect in the sidewalk which had caused her to fall.

In striking plaintiff's counteraffidavit, the trial court found Pedersen v. Joliet Park District (1985), 136 Ill. App. 3d 172, 483 N.E.2d 21, dispositive of the issue. In Pedersen, plaintiff, age 34, was injured while playing basketball with some other adults at a school gymnasium which was open to the public for recreational use. Plaintiff filed an action in negligence alleging that defendants had been negligent in maintaining and cleaning the gymnasium floor.

Defendants moved for summary judgment, maintaining that plaintiff had failed to establish that the alleged negligence was the proximate result of his injuries. In support of their motion, defendants attached excerpts of plaintiff's discovery deposition which stated that: (1) plaintiff could not recall what had caused him to fall; (2) the gymnasium floor had had no visible defects; (3) the floor had not appeared dusty or slippery; and (4) the floor appeared to have been in fairly good shape and had been fairly clean.

In response to the motion for summary judgment, plaintiff attached an affidavit in which he asserted that when he had returned to the gymnasium two years after the accident, he recalled that the floor surface had been dusty and slippery at the time of the accident. The trial court granted summary judgment and the appellate court affirmed, stating that it found unpersuasive plaintiff's attempt to create an issue of fact by filing an affidavit which contradicted his deposition.

In the present case, plaintiff argues that there is nothing in her affidavit which contradicts her deposition testimony. Defendant, on the other hand, contends that plaintiff's affidavit contradicted deliberate and unequivocal admissions made under oath at the discovery deposition. Specifically, defendant claims that "the issue as to the cause and location of her accident were removed from contention by the plaintiff's assertions that ...


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